Devonte Lee McNamee v. the State of Texas ( 2023 )

NO. 12-23-00097-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DEVONTE LEE MCNAMEE, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Devonte Lee McNamee pleaded “guilty” to assault of a pregnant person and the trial
court placed him on deferred adjudication community supervision for eight years. The State
subsequently moved to adjudicate guilt, alleging several violations of Appellant’s community
supervision. Appellant pleaded “true” to all but one of the State’s allegations. The trial court
sentenced him to ten years in prison. Appellant filed a notice of appeal.
On July 28, 2023, this Court remanded the appeal to the trial court because the time to
file Appellant’s brief expired without a brief or motion for extension of time. We ordered that
the trial court conduct a hearing to determine (1) whether the appellant still desires to prosecute
his appeal; (2) whether the appellant is indigent and either needs counsel appointed, or
appellant’s counsel has abandoned the appeal; or (3) if the appellant is not indigent, whether a
brief has not been completed because retained counsel has either abandoned the appeal or
because appellant has failed to make necessary arrangements for filing a brief; and (4) when
appellant’s counsel anticipates that the appellant’s brief, if a brief is to be filed, will be
completed.
The trial court conducted said hearing on August 4, at which Appellant’s appointed
counsel appeared but Appellant did not. Counsel stated the following:
…He was released on shock probation. We had trouble finding him. I talked to him this
Wednesday and -- he was on the phone -- and he said, “I don’t want to pursue the appeal. Don’t
do it.” And then since then I tried to make arrangements for him to sign a notice of a voluntary
dismissal of the appeal. And I have not been able to contact him.
So I can submit the brief. I can probably get that in by next Friday. But I’m a little concerned that
it may not be what my client wants.
The trial court responded that Appellant has an outstanding warrant for a new felony offense and
that the probation department and Tyler Police Department had been looking for him. The trial
court stated:
But, I guess, based on your representation, the finding I would make -- certainly find you to be a
credible witness -- I guess -- that he has indicated he absolutely does not want to pursue this
appeal.
And I guess we’ll make a recommendation that the 12th Court dismiss the appeal.
The trial court subsequently signed the following written findings:
1. The appellant remains indigent.
2. The defendant has had no contact with his appellate attorney, is currently an absconder from
probation, and has at least one outstanding felony warrant from the Tyler Police Department. As
such, the Court finds that there is almost no likelihood that appellant will be located any time in
the near future.
3. The defendant has expressed to defense counsel that he no longer wishes to purse this appeal.
4. The Court finds appellate counsel’s testimony to be credible and recommends, pursuant to the
wishes of appellant, that the Twelfth Court dismiss the appeal.
At any time before an appellate court’s decision, the appellate court may dismiss the
appeal upon the appellant’s motion signed by both appellant and his counsel. TEX. R. APP. P.
42.2(a). Appellant has not filed a motion to dismiss his appeal. Nevertheless, given appellate
counsel’s representations that appellant said he did not want to pursue an appeal, the trial court’s
findings and recommendation that the appeal be dismissed, and the fact that Appellant cannot be
located, we conclude that good cause exists to suspend the operation of Rule 42.2(a) in
accordance with Rule 2. See TEX. R. APP. P. 2 (“On a party’s motion or on its own initiative an
appellate court may--to expedite a decision or for other good cause--suspend a rule’s operation in
a particular case and order a different procedure”); see also Comley v. State, No. 13-22-00618-
CR, 2023 WL 4501883, at *1-2 (Tex. App.—Corpus Christi July 13, 2023, no pet. h.) (mem. op.,
not designated for publication) (applying Rule 2 to dismiss appeal in which trial court found
appellant abandoned appeal when he failed to appear at hearing on remand and appellant had not
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filed motion to withdraw); Contreras v. State, No. 01-07-00385-CR, 2008 WL 340481, at *1
(Tex. App.—Houston [1st Dist.] Feb. 7, 2008, no pet.) (per curiam) (mem. op., not designated
for publication) (applying Rule 2 to dismissal of appeal in which trial court found appellant no
longer wanted to pursue appeal but appellant filed no motion to withdraw appeal). Accordingly,
we dismiss the appeal.
Opinion delivered August 9, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 9, 2023
NO. 12-23-00097-CR
DEVONTE LEE MCNAMEE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1039-22)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J